Charles Lowenthal, Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., C. E. Haines, Philadelphia, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
On March 25, 1971, Oliver Williams was shot and killed in the 1867 Bar in North Philadelphia at about 8:00 P.M. Thomas Law testified that appellant was present in the bar at 11:00 A.M. and remained there all day until the shooting. Law saw the appellant walk up to the deceased and shoot him. The owner of the bar, Ernest Jones, who knew the appellant well, also testified that appellant simply walked up to the deceased and shot him. Appellant admitted being in the bar on the day in question, but claimed that he was at home asleep at the time of the incident.
A jury found appellant guilty of murder in the first degree and, after post-trial motions were denied and sentence was imposed, this direct appeal followed.
Understandably, appellant does not challenge the sufficiency of the Commonwealth's evidence against him. Rather he argues that three remarks made by the trial judge (one during the trial and two during the charge to the jury) were unfairly prejudicial.
On redirect examination of Mr. Law, the Commonwealth introduced a photograph of the bar and asked Mr. Law to mark the location of the deceased, the appellant, and himself at the time of the shooting. Apparently the witness made a mark and the trial judge interjected,
"That is the gunman."*fn1 Appellant urges that this remark created in the minds of the jury the impression that the court was of the opinion that appellant was the gunman. We cannot agree. When taken in context, it is clear that the remark merely clarified the witness' mark on the photo and in no way reinforced the veracity of his testimony. There is nothing to indicate that the judge agreed with the witness' statements.
Appellant next contends that the following portion of the charge removed the ...